Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-2 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to defendant Rudy Sablan's Motion in Limine. 1. Rudy Sablan seeks rulings from the Court on several evidentiary issues that may come up during the trial. The government will address each of these issues in turn. 2. Rudy Sablan Having a Reputation as a Violent Person ­ The government does not intend to elicit evidence from its witnesses in the liability phase that Rudy Sablan had a reputation as a violent person or that he was violent, other than the evidence of his participation in the murder of Mr. Estrella and the obvious fact that he was incarcerated in a United States Penitentiary, which houses violent offenders, and had been placed in the SHU as a result of Rudy Sablan having been attacked while in general population. The government does intend to introduce evidence that Rudy Sablan is a

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violent person in any penalty phase. 3. Reasons for SHU Placement ­ Rudy Sablan claims that "The reason for placing William in the SHU, indeed the reason for placing anyone in the SHU, is not relevant and creates an unnecessary unfair prejudicial inference." See Defendant's Motion in Limine at Section B. The government disagrees. First, the jury will necessarily learn that the homicide occurred in the Special Housing Unit and that Rudy and William Sablan were cellmates in the SHU. The government is entitled to introduce evidence that explains what the SHU is and why it has certain procedures. Second, William Sablan arrived at USP Florence just three days before the homicide and was placed in the same cell as his cousin and namesake Rudy Sablan. The government is entitled to explain the circumstances and timing of William Sablan's placement in Cell 124 in the SHU. Third, in order to explain Rudy Sablan's statements to William Sablan on the 70 minute cell video, it is necessary for the jury to know that William Sablan had been placed in the SHU and in USP Florence only recently. For example, throughout the videotape, Rudy Sablan is giving explanations to William Sablan about certain correctional officers and about certain procedures at the prison. The jury is entitled to know the context of such statements. Fourth, it is relevant for the jurors to know that one of the reasons for William Sablan's placement in the SHU was for his own protection. Rudy Sablan had been attacked in the yard at USP (resulting in his protective placement in the SHU), and the BOP was concerned that the people who attacked Rudy Sablan

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might attack William due to his last name. Fifth, Rudy Sablan's claim that the SHU information would be prejudicial is incorrect. Given that jurors will already know that Rudy Sablan and William Sablan were prisoners in the SHU, the additional fact that he was placed in the SHU for his own protection is not prejudicial. 4. Alleged Speculation by Mark Farmer ­ Rudy Sablan complains that, in the William Sablan trial, Mark Farmer speculated about several topics. See Defendant's Motion in Limine at Section C. However, in each instance, Farmer was drawing a conclusion based on observations that he had made. Federal Rule of Evidence 701 permits a witness who is not an expert to offer opinion testimony when it is rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Federal Rule of Evidence 702. Thus, Rule 701 permits the admission of lay opinion testimony provided that it meets two criteria: a rational basis in perception and helpfulness. United States v. Bush, 405 F.3d 909, 915-916 (10th Cir. 2005). In Bush, the court noted: When addressing the admissibility of lay identification testimony, courts have been liberal in determining the extent of perception required to satisfy the first requirement of Rule 701. Courts have likewise preferred to leave to juries any assessment of the weight to be given to such testimony when there exist questions regarding the quantity or quality of perception. 405 F.3d at 916. In particular, courts have allowed lay opinion "as to another's state of mind if the witness had sufficient opportunity to observe the accused so as to draw a

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rational conclusion about the intent of the accused." United States v. Hoffner, 777 F.2d 1423, 1425 (10 th Cir. 1985). As the Third Circuit explained, "[T]estimony that a person was `excited' or `angry' is more evocative and understandable than a long physical description of the person's outward manifestations." Asplundh Mfg. Division v. Benton Harbor Engineering, 57 F.3d 1190, 1196 (3d Cir. 1995). Given this legal framework, it is apparent that Farmer has a proper basis for giving an opinion about each of the topics that Rudy Sablan identifies: (a). Rudy "was enjoying himself while they were going at each other." (Tr. 3586). The entire passage, as opposed to short passage that Rudy Sablan quotes, states: "I heard him [Rudy] laughing and kind of just like he was ­ he was enjoying himself while they were going at each other, arguing, being belligerent and being disrespectful, Rudy was laughing." William Sablan trial, at 3586, lines 15-17. Farmer hears fighting, an argument between William Sablan and Estrella, and then Rudy Sablan laughing. Under Rule 701, Farmer's opinion that Rudy Sablan was enjoying himself: (a) is rationally based on hearing Rudy Sablan laughing, (b) is helpful to the jury's understanding of Farmer's testimony since hearing laughter at the same time arguing and fighting are taking place is an apparent contradiction that needs explanation, and (c) is not based on specialized knowledge with the scope of Rule 702, i.e. is not expert testimony. Rule 701 therefore allows that type of testimony. (b) "I think they killed Flaco..." (Tr. 3590). Farmer testified that he heard

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arguing, fighting, and then choking sounds coming from the cell next door. After the choking sounds, Farmer heard Willam Sablan and Rudy Sablan talking. He did not hear Joey Estrella. Farmer told his cellmate "I think they killed Flaco." Farmer explained what happened next: "[W]e yelled over to Flaco because after we heard someone being choked out, we didn't hear no one talking but William and Rudy...." Thus, Farmer was not expressing an opinion. He was describing what he said to his cellmate to explain what they did next, namely, they both called out for Estrella. Without that explanation, the jury would not understand why both of them were attempting to get Estrella to respond. Thus, this is res gestae. And, if not res gestae, it is allowable under Rule 701 because it is a lay opinion that is based on direct observation and is helpful to the jury. (c) "They were celebrating. They were having a good time." (Tr. 3593). Farmer testified that, after 20 minutes of hearing the Sablans talking to one another in their native language and hearing the toilet flushing, he heard the Sablans "howling." (Tr. 3592, line 19). Rudy Sablan then "yelled on the tier to whoever wants liver, guts, or korason, which is heart, tell us what cell you're in, and we'll send it to you." Farmer then explained, "they were celebrating. They were having a good time." (Tr. 3593, lines 5-6). This statement also meets the Rule 701 test: (a) it is rationally based on Farmer's direct observation; (b) it is helpful to the jury because it establishes the emotional context of the Sablans' howling and Rudy Sablan's comments about the organs, i.e. he was celebrating; and (c) it is not an expert opinion under Rule 702. Thus, this statement is admissible.

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5. Verdict in the William Sablan trial ­ The government agrees that the verdicts in the William Sablan trial should not be admitted in the liability phase of this case. The government will instruct its witnesses accordingly. 6. Projected Release Date of Joey Estrella ­ It is not clear from Rudy Sablan's motion in limine why the projected release date of Mr. Estrella is prejudicial or irrelevant. See Defendant's Motion in Limine at Section E. The Court should rule on this issue during the trial if the issue arises. 7. Showing of the 70 Minute Video from Cell 124 ­ The government understands that the defendant has withdrawn this objection. WHEREFORE the United States requests that the Court deny Rudy Sablan's Motion in Limine.

Respectfully submitted this 25th day of February, 2008.

TROY A. EID United States Attorney BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of February, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

By: s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0403 E-mail: [email protected]

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